Owens v. Pennsylvania Board of Probation & Parole

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. Because James E. Owens received a sentence of “guilty without further penalty” on his new criminal charges, a sentence that involves no possibility of jail time, I believe that Owens is entitled to credit on his original sentence for the time he spent in custody awaiting disposition of those charges. Thus, unlike the majority, I would reverse the order of the Pennsylvania Board of Probation and Parole (Board) and remand this case to the Board for a recalculation of Owens’ parole violation maximum date.

When a parolee is arrested and does not post bail, pre-trial confinement is credited to the sentence received upon conviction of the new charge; however, “if no new sentence is imposed for that conviction on the new charge, the pre-trial custody time must he applied to the parolee’s original sentence.” Davidson v. Pennsylvania Board of Probation and Parole, 667 A.2d 1206, 1208 (Pa.Cmwlth.1995) (quoting Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397 , 404 n. 6, 412 A.2d 568 , 571 n. 6 (1980)) (emphasis in original). *922 This rule of law is based in equity, and equity requires the administration of justice according to principles of fairness, justness and right dealing. 1 Indeed, underlying the rule is a basic notion of fairness, i.e., that a parolee in custody awaiting disposition of new criminal charges should receive credit for that jail time. The parolee may be entitled to credit towards the new sentence or credit towards the original sentence, but, whichever the case, equity dictates that the parolee must receive credit.

Of course, a parolee cannot receive credit towards a new sentence if the new sentence does not involve the possibility of a period of confinement. 2 Here, Owens received a sentence of “guilty without further penalty” pursuant to section 9723 of the Sentencing Code. 3 The majority states that this means Owens was “sentenced without having to serve any further time.” (Majority op. at 5.) (Emphasis added.) Evidently, the majority believes that a sentence of “guilty without further penalty” is the equivalent of a sentence of “time served.” I believe that the majority has misconstrued the nature of the sentence received by Owens in this case.

In Commonwealth v. Rubright, 489 Pa. 356, 362 , 414 A.2d 106, 109 (1980) (emphasis added), our supreme court stated that a sentence of “guilty without further penalty” acknowledges the person’s guilt “without imposing any other form of punishment.” The court also indicated that such a sentence is appropriate where “the needs of justice are fulfilled by a determination of guilty alone, without necessity for further penalty.” Id. (emphasis added). Thus, in Rubright , our supreme court made clear that a sentence of “guilty without further penalty” involves no possibility of jail time. Because Owens received such a sentence in this case, it is not possible to give Owens credit against that sentence for his pre-trial custody time. Therefore, equity dictates that Owens must receive credit against his original sentence.

In reaching a different result, the majority relies upon this court’s recent decision in Smarr v. Pennsylvania Board of Probation and Parole, 748 A.2d 799 (Pa.Cmwlth.2000). However, Smarr is distinguishable because the parolee in Smarr did not receive a sentence that precluded the possibility of incarceration; rather, the parolee received a sentence of probation.

When imposing an order of probation on a defendant, the sentencing court must attach reasonable conditions “to insure or assist the defendant in leading a law-abiding life.” Section 9754(b) of the Sentencing Code, 42 Pa.C.S. § 9754(b). If the defendant violates those conditions and the sentencing court revokes the order of probation, the court will sentence the defendant as if the defendant had never received the sentence of probation. Indeed, “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing.” Section 9771(b) of the Sentencing Code, 42 Pa.C.S. § 9771(b).

In Smarr , the parolee received a sentence of probation following his conviction for criminal mischief and related offenses. Section 3304(b) of the Crimes Code, 18 Pa.C.S. § 3304(b), indicates that criminal mischief can be a third degree felony, a second or third degree misdemeanor or a *923 summary offense. Thus, depending on the grade of the offense, 4 the parolee in Smarr could have been incarcerated for ninety days, one year, two years or seven years. See section 106 of the Crimes Code, 18 Pa.C.S. § 106. Under any of those circumstances, the parolee in Smarr would have been entitled to credit against the new sentence for his pre-trial custody time.

Here, unlike the situation in Smarr , no conditions were attached to Owens’ sentence. Therefore, Owens will never face the possibility of incarceration in connection with his sentence of “guilty without further penalty.” Accordingly, I would reverse and remand for a recalculation of Owens’ parole violation maximum date.

Judge McGINLEY and Judge SMITH join this in dissent.

. See Davidson; see also Black’s Law Dictionary 540 (6th ed.1990).

. Section 9760(1) of the Sentencing Code, 42 Pa.C.S. § 9760(1), states that a defendant in a criminal case shall be given credit for time spent in pre-trial custody "against the maximum term and any minimum term” of the new sentence. Obviously, if a defendant’s new sentence has no term of confinement, no credit can be given towards that sentence.

.42 Pa.C.S. § 9723. Section 9723 states: "If in the light of all the circumstances, probation would be appropriate under section 9722 (relating to order of probation), but it appears that probation is unnecessary, the court may impose a sentence of guilty without further penalty.” See also 42 Pa.C.S. § 9753.

. The grade of the offense in Smarr is not clear from this court’s decision.